Judging Social Rights in the Czech Republic

Abstract This article examines the methodology employed by the Czech Constitutional Court in adjudicating social rights, with particular focus on the so-called rationality test. While the Court’s approach aims to balance judicial restraint with the constitutional protection of social rights, its implementation raises important theoretical and practical concerns. The article relies both on holistic analysis of the case-law from which general remarks in relation to social rights in the Czech Charter of Fundamental Rights and Freedoms and methodological approach of the Court are derived, and the detailed case study of three pilot judgments, namely: judgments on Compulsory Vaccination ( Pl. ÚS 16/14); Smoking Ban in Restaurants ( Pl. ÚS 7/17) , and Health Insurance of Migrants ( Pl. ÚS 2/15). By these means, the article explores how the Court has developed and applied its distinctive four-step rationality test that combines the protection of the core of the right with reasonableness and proportionality. The approach of the Czech Constitutional Court represents a global anomaly, as no comparable model has yet been described in the comparative constitutional law literature. This article addresses three core pitfalls of the Court’s approach to judging social rights: 1) Although the rationality test seems to accommodate deferential variation on proportionality, in practice the test often collapses into a mere assessment of the suitability of the contested measure, without proper consideration of the normative content of the right at issue or the harm caused to individual rights-holders. 2) In many cases, the Constitutional Court is reluctant to interpret the core of rights and/or their normative content in general. 3) The study also demonstrates that the Constitutional Court still has not found a clear and sound attitude towards positive obligations. In its concluding section, the article offers a normative proposal for reform of the Court’s methodology.